In a world with an intellectual history of seven thousand years behind it, where do Pakistanis stand, what are they doing, what do they aspire to be, and what ought they to be doing? This Blog takes Notes of all of that ...

Saturday, August 10, 2013

The perils of judicial populism - II

“Judges rule on the basis of law, not public opinion,
and they should be totally indifferent to pressures of the times.”

[Warren E. Burger
(1907-1995), Chief Justice, US Supreme Court]

If the Chief Justice’s case
was before the country’s highest court of law, what was the need for the
lawyers, civil society organizations, political activists and ordinary people
to come out to the streets? This is the trickiest question that must be answered
to understand the July 20 judgment. Also, this brings us to the first context:
what transpired before the reference was filed against the Chief Justice.

There were / are attempts at
finding answers to the question. Their focus is the judiciary’s past character.
The boldest statement in this regard termed judiciary as B team of Pakistan
Army; and appealed to it to act instead as A team of people. The first step
towards this transformation of the judiciary was indicated as the reinstatement
of the Chief Justice. It was clarified that since in the past judiciary had
been legitimizing the military takeovers and providing them with constitutional
covers, it was likely that it did slip under the pressure of the present
military regime to make an influenced verdict; and that was why a ‘thrust’ from
outside the court was needed to give it support. They say hadn’t lawyers come
out to the rescue of the Chief Justice; he must have still been in a state of
house-arrest cut off from the outside world. It was the pressure of this
movement transmitted very forcefully by the media especially electronic media
that got him released; otherwise he would have been made ineffective literally.

That’s conceded, but when he
was out and home in his own Supreme Court with his case before the full bench,
weren’t the lawyers then supposed not to be around him, taking him in rallies
to various cities to address the bar associations. Wasn’t now it up to the apex
court to see to his petition? Why the lawyers, civil society and political
activists were there then? It was no business of them to be around the Chief
Justice and the Court then.

Another such attempt
presently in vogue takes strength from late Justice Dorab Patel. He is being
quoted as justifying his role in the bench that validated the military takeover
of General Zia-ul-Haque on the plea that ‘how could a few judges stop the coup
leader when a nation of 140 million remained silent.’ This unequivocally
defends the present lawyers’ movement and the participation of civil society
organizations, political and religious parties in it. It worked as support to
the few judges in stopping a coup leader. Now Justice Dorab Patel should rest
in greater peace that a nation of 169 million did not remain silent.

Does this prove that it was
this movement that midwifed the birth of the judgment of July 20? Of course, it
did, but in the eyes of only those who hold such a view. It is for those who
are Dorabians and believe that without such a movement no such judgment could
have issued forth from the full bench of the highest court of the country.
Also, this requires that they should not believe in the Constitution which
clearly dismisses such military takeovers and prescribes the strictest
punishment for its violators. It means that the custodian of the Constitution,
the judiciary, needs people’s support to protect, defend and interpret the
Constitution in accordance with the spirit and provisions of the Constitution.
Without this support, the July 20 verdict could not be such a historic one. If
it is so, and as it seems it is so, it is most unfortunate for our country and
the Constitution as well.

It is here that we enter the
third context: what is transpiring now after the judgment and what will
transpire in future regarding the judgment.

The nature and meaning of the
July 20 judgment as delineated and contextualized above justify the thinking
that for all such cases of importance to be decided accordingly popular support
will be needed. No popular support, no popular judgment. Or, if it could be
worded like this: popular support ensures constitutional judgments. No popular
support, no constitutional judgments. Thus, the ethos created by the judgment
may appropriately be termed as Judicial Populism. Isn’t it that what Justice
Dorab Patel talked about? Isn’t it that what the counsels of the Chief Justice
spoke about in their speeches and interviews? Isn’t it that what came to be the
target of the government and its proponents’ criticism that the sub judice
matters are not contested outside the court?

Under the circumstances, what
is more depressing is that we have no inkling of how dangerous and fatal this
Judicial Populism may prove to be! This view is corroborated by the sheer
absence of the view that judgments are made in accordance with the provisions
of the Constitution. Whoever talks about the July 20 judgment, be he a common
man or a journalist or a political or judicial analyst or for that matter an
expert on law or a retired judge, bonds the judgment together with the lawyers’
movement: that such a judgment was not possible without such a movement.
Strangely, they admit that judges are human beings and are influenced by the
circumstances prevailing outside the court; but in the same breath, they
declare that they judge according to the relevant laws. They are, in fact, in a
vicious circle. They have no way out. Why? Because they do not want to
acknowledge that their movement was a spontaneous outrage against an outrageous
act of a dictator that was deliberately transformed into an organized movement.
The focus of their movement was the restoration of the Chief Justice, and
nothing else. It’s evident that it has exhausted itself the moment its goal was
achieved.

No doubt, their movement gave
rise to slogans of utmost importance such as: independent judiciary; rule of
law; supremacy of the constitution; and civilian democratic rule. Have these
goals been achieved? Or will they be achieved in near future? Very unlikely!
However, the first step in this direction has already been taken with the
restoration of the Chief Justice and undermining of the anti-constitution
forces and strengthening of the judiciary.

But some of the signs, such
as intimidation of lawyers differing from the mainstream lawyers and advocating
the government’s case, which were already present during the heyday of the
lawyers’ movement, now seem to have started maturing. Two recent incidents of
coercing of a known journalist, Khalil Malik, and a popular lawyer, Naeem
Bokhari, by the legal fraternity are symptomatic. What is most unfortunate is
that there is no registering of FIRs or investigations whatsoever. This
indicates that the lawyers’ movement is deliberately being transformed into a
judicial populism.

Coming back to the
contention, it may be asked why the lawyers were afraid of losing the fight.
Why didn’t they trust the court? Why did they resort to agitation? Why did they
take to the popular support? Why did they put an extraordinary pressure on the
court? Why did they openly make statements not to accept any judgment going
against the sentiments of the people? Moreover, even now why are they and the
representatives of civil society and intelligentsia justifying the popular
support to the court to deliver a popular judgment?

The truth in fact is that
they did not trust the court, and they were justified in their mistrust of the
court. The history of court’s judgments in such matters has been disappointing
altogether. It appeared there was no Constitution; stage a coup and take a
judgment of your choice. The courts were there to cook whatever was needed to
be offered to the uniformed guests. With such a background, how can one, and if
that one happens to be a lawyer who knows well the character of the persons
sitting in the courts, can trust the courts.

But, that’s not all. The
story needs to be retold. The man who inhabits the land of Pakistan has no
moral values. He has no integrity of character. He is a man of flesh only. He
is not a man of principle. He has no regard for the means; his ends justify his
means. He has no conscience. In sum, the quality of man in Pakistan is at its
lowest. How can then judges go beyond this state of affairs? Justice Dorab
Patel admitted that. It is admitted even today by everyone. Judges whether
retired or not argue like this: after all judges are human beings. This
justifies every act of theirs.

Justice Dorab taunted: If 140
(or 169) million people remain silent, how a handful of judges should stop the
coup? Let me be a bit disobedient here: did 140 or 169 million people take oath
of protecting the Constitution? No, lords, it were you who took the oath. So,
it were you who defied their oath. It were you lords who did not protect the
Constitution. It were you lords who lost their integrity. Not the people. You
misled the people, and then blamed them.

My Lords, as is said, a judge
does not need to be learned in the science of jurisprudence and the laws of the
land; it is two lawyers, plaintiff’s and defendant’s, who teach him that; what
is required of a judge is integrity of character. My Lords, did you prove that?
Or is otherwise? My Lords, do you need 140 or 169 million people at your back
to make judgments in accordance with the provisions and spirit of the
Constitution? My Lords, do you know this begets judicial populism. This is
begetting judicial populism. My Lords, do you know the perils of judicial
populism. It will destroy whatever little is left of the rule of law in
Pakistan? It will destroy supremacy of the Constitution, independence of the
judiciary, and turn the society of Pakistan into adventurous warring groups of
gangsters. My Lords, I believe you did not need any popular support; you did
not need 169 million people at your back to protect the Constitution. My Lords,
so many people like me who believe in the rule of law are eager to be made sure
that you did not need any popular movement to issue the July 20 verdict. My
Lords, you know that will change the context of your judgment altogether. That
will put your judgment in its proper context.

The Blogger

The blogger cherishes a cosmopolitan spirit; he is a moralist; a rationalist; a philosopher; a political philosopher; he believes in Classical Liberalism, as a Theory of Conduct.
He has substantially contributed to the founding of the first free market think tank of Pakistan, Alternate Solutions Institute.
He is a writer who wrote / published dozens of articles on a variety of issues, and is author of 4 books.
He wrote / published short-stories in Punjabi, a regional language of Pakistan.
He composes poetry both in Urdu and Punjabi, and has already published one collection.